Legal theory must become more factual and empirical and less conceptual and polemical, Richard Posner argues in this wide-ranging new book. The topics covered include the structure and behavior of the legal profession; constitutional theory; gender, sex, and race theories; interdisciplinary approaches to law; the nature of legal reasoning; and legal pragmatism. Posner analyzes, in witty and passionate prose, schools of thought as different as social constructionism and institutional economics, and scholars and judges as different as Bruce Ackerman, Robert Bork, Ronald Dworkin, Catharine MacKinnon, Richard Rorty, and Patricia Williams. He also engages challenging issues in legal theory that range from the motivations and behavior of judges and the role of rhetoric and analogy in law to the rationale for privacy and blackmail law and the regulation of employment contracts. Although written by a sitting judge, the book does not avoid controversy; it contains frank appraisals of radical feminist and race theories, the behavior of the German and British judiciaries in wartime, and the excesses of social constructionist theories of sexual behavior.
Throughout, the book is unified by Posner's distinctive stance, which is pragmatist in philosophy, economic in methodology, and liberal (in the sense of John Stuart Mill's liberalism) in politics. Brilliantly written, eschewing jargon and technicalities, it will make a major contribution to the debate about the role of law in our society.
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Introduction Pragmatism Economics Liberalism
Part One The Profession
The Material Basis of Jurisprudence
The Triumphs and Travails of Legal Scholarship
What Do Judges Maximize?
Germany and Britain
Part Two Constitutional Theory
Legal Reasoning from the Top Down and from the
Biology Economics and the Radical Feminist Critique of
Obsessed with Pornography
Nuance Narrative and Empathy in Critical Race Theory
Part Five Philosophical and Economic Perspectives
So What Has Pragmatism to Offer Law?
Ronald Coase and Methodology
The New Institutional Economics Meets Law and
Have We Constitutional Theory?
Legal Positivism without Positive Law
What Am I? A Potted Plant?
Bork and Beethoven
Part Three Variety and Ideology in Legal Theory
The First Neoconservative
Pragmatic or Utopian?
Hegel and Employment at Will
Postmodern Medieval Iceland
Part Four Of Gender and Race